Federal Regulations on
Advertising:
Phone, Fax, or E-mail
By
Jordan B. Hansell
700 Walnut, Suite 1600
Des Moines, Iowa 50309
Telephone: 515-283-8166
Facsimile: 515-283-8018
[email protected]
Disclaimer
The following presentation does not represent legal advice.
If you have specific questions concerning specific
circumstances, please consult your attorney.
Modern Advertising Techniques
• With the explosion of technology in
the recent decades, companies have
found new ways to reach potential
consumers
▫ Telemarketing
▫ Direct Fax
▫ E-mail
Modern Advertising Techniques (cont.)
• Though each of these new methods of advertising
are cheap and efficient, they carry with them
several compliance risks with the Federal laws
regulating them
▫ Telephone Consumer Protection Act (“TCPA”)
▫ Junk Fax Prevention Act (“Fax Act”), which amended
the TCPA
▫ Controlling the Assault of Non-Solicited Pornography
and Marketing Act (“CAN-SPAM”)
▫ Telemarketing and Consumer Fraud and Abuse
Prevention Act (“TCFAP”)
 This presentation only discusses the TCPA, Fax Act and CAN-SPAM;
the TCFAP generally prohibits deceptive and other abusive
telemarketing acts or practices and is not covered in this presentation.
Modern Advertising Techniques (cont.)
• Public Opinion:
▫ “Telemarketers. The public hates them. It hates
them even more than it hates France, low-flow
toilets, or ‘customer service.’” – Dave Barry
• This presentation will hopefully help you
stay on the good side of both “the public”
and “the law”
Telemarketing and the TCPA
Telemarketing and the TCPA
• The TCPA, the Federal Communication Commission’s
(“FCC”) Rules, and the Federal Trade Commission
(“FTC”) Rules regulate telemarketing
• These regulations cover some basic areas:
▫
▫
▫
▫
The time of day telemarketers (businesses and individuals) may call
The content of the call
The use of automatic telephone equipment
The creation of a National Do-Not-Call list
Telemarketing and the TCPA (cont.)
• First some definitions:
▫ Telephone solicitations are defined as the initiation of a
telephone call or message for the purpose of encouraging
the purchase or rental of, or investment in, property,
goods, or services, which is transmitted to any person
▫ Calls or messages made to any person with that person’s
prior express permission or pursuant to an Established
Business Relationship or EBR are excluded from this
definition, as well as calls by a tax-exempt nonprofit
organization
Telemarketing and the TCPA (cont.).)
• Definitions (cont.):
▫ Established Business Relationship (“EBR”) in relation to
telemarketing is:
 A prior or existing relationship formed by a voluntary two-way
communication between a person or entity and a consumer either:
 On the basis of the consumer’s purchase or transaction with the entity
within the prior 18 months; or
 On the basis of an inquiry or application regarding products or services
within the prior 3 months
▫ Businesses that use “lead generators,” i.e., businesses that
search for prospective customers for others, do not have a valid
EBR with a consumer when that consumer submits his contact
information to the lead generator.
▫ If however, the lead generator were to clearly and
conspicuously disclose, before the consumer gave his
information, that the consumer may receive telemarketing calls
as a result, as well as the maximum number of entities who may
call, then there may be an EBR or express permission
Telemarketing and the TCPA (cont.)
• Basic Rules:
▫ Telephone solicitations are prohibited to phone numbers
placed on the Do Not Call Registry, discussed in detail
below
▫ All calls to residential telephones are prohibited between
9 p.m. and 8 a.m.
 This includes telephone solicitations and
 Calls to a person with an EBR or a person who gave consent
▫ In other words, although EBRs and calls based on
express consent are excepted from the definition of
telephone solicitations, even these calls are prohibited
between 9 p.m. and 8 a.m.
Telemarketing and the TCPA (cont.)
• Basic Rules (cont.):
▫ All calls, whether live or recorded, must include:
 The caller’s name;
 The organization for which the caller is working; and
 The contact information for the organization.
▫ All the above information, as well as a business phone
number, must be able to be displayed on a caller ID
 The phone number must be one that the consumer may call
during regular business hours to request that the company no
longer call the consumer
Telemarketing and the TCPA (cont.)
• Rules regarding automated telephone
equipment:
▫ The TCPA prohibits using any automatic telephone
dialing system or an artificial or recorded voice to
call:
 An emergency telephone line
 The telephone line of a guest room or patient room of a
hospital, health care facility, elderly home or similar
establishment
 Cellular phones, pagers, mobile radio services or other radio
common carrier service or any service for which the party is
charged for the call
Telemarketing and the TCPA (cont.)
• Rules regarding automated telephone equipment
(cont.):
▫ Artificial or prerecorded voice messages may not be
used to call home phone numbers unless:




Emergency call to ensure safety
Prior express consent was given
Non-commercial call
Calls that don’t include or introduce any unsolicited
advertisements or constitute telephone solicitations, e.g.
political ads
 Calls by tax-exempt nonprofit organizations; or
 Calls to consumers with an EBR with the caller
Telemarketing and the TCPA (cont.)
• Further TCPA prohibitions:
▫ May not disconnect an unanswered telemarketing call prior to at
least 15 seconds or four rings
▫ May not abandon more than three percent of all telemarketing calls
that are answered live by a person, measured over a 30-day period
 A call is abandoned if it is not connected to a live salesperson within two
seconds of the called person’s completed greeting
 If a salesperson is not available, a prerecorded message must be played
within the two seconds, stating the name and telephone number of the
entity on whose behalf the call was placed, and that the call was for
“telemarketing purposes”; after this statement, the call can be
disconnected
▫ Use any technology to dial a number for the purpose of determining
whether it is a fax or telephone line
Telemarketing and the TCPA (cont.)
• National Do Not Call Registry
▫ Created in 2003, the registry is nationwide, covering
both interstate and intrastate calls
▫ Currently, the Registry has over 137 million phone
numbers registered
▫ Consumers may register their personal phone numbers,
including wireless phone numbers, on this list
▫ Once registered, callers are prohibited from making
telephone solicitations to those numbers, with few
exceptions
Telemarketing and the TCPA (cont.)
• National Do Not Call Registry (cont.)
▫ Exemptions:
 Calls from political organizations
 Calls from charities (must be true nonprofits)
 FTC v. National Consumer Council, Inc.: National Consumer
Council (“NCC”), a purported nonprofit, solicited customers
through calling numbers on the Do Not Call Registry and other
methods promising free debt counseling. In fact, NCC was
simply trying to generate leads for for-profit firms, who then
charged the consumers thousands of dollars in fees to enroll in
their debt negotiation programs. A federal district court put
NCC into receivership. The receiver has returned
approximately $24 million in consumer funds and is winding
down NCC’s operations. Additional fines and fees were
imposed in the millions of dollars.
Telemarketing and the TCPA (cont.)
• National Do Not Call Registry (cont.)
▫ Exemptions (cont.):
 Calls from charities (cont.)
 FTC v. Debt Management Foundation Services, Inc. –
essentially the same facts as with NCC, a purported nonprofit
was really attempting to generate leads for for-profit firms –
the final order included a suspended monetary judgment of
$11,035,065; this included funds that were falsely taken from
consumers
 Lesson – the FTC will look beyond the label “nonprofit”
 Calls from telephone surveyors
 Calls from companies with an EBR with the consumer
 Calls between businesses
Telemarketing and the TCPA (cont.)
• National Do Not Call Registry (cont.)
▫ Callers must access the Do Not Call Registry at least
once every 31 days to synchronize their calling lists with
an updated version of the Registry
▫ Callers may not call a number within a given area code
unless the caller has first subscribed to and accessed that
portion of the Registry that contains that area code
Telemarketing and the TCPA (cont.)
• National Do Not Call Registry (cont.)
▫ Accessing the registry:
 The Registry can be accessed online at
www.telemarketing.donotcall.gov
 The telemarketer must create a profile and provide
identifying information
 Data can be accessed either by paying for certain area
codes or for the entire database
 The access fees must be paid annually
 Current rates are $62 per area code (the first five area
codes are free), and $17,050 for the entire database
Telemarketing and the TCPA (cont.)
• National Do Not Call Registry (cont.)
▫ Penalties:
 Violators of the Do Not Call regulations and the other
regulations discussed above may be subject to fines of
up to $11,000 per violation
 Each call may be considered a separate violation
 There is a “Safe Harbor” for inadvertent mistakes
 In addition, individuals may sue in state court and
seek injunctive relief and the greater of actual
damages or $500 (which can be tripled if the violation
was “willful or knowing”)
 Class actions are permitted
Telemarketing and the TCPA (cont.)
• National Do Not Call Registry (cont.)
▫ Safe Harbor provision: The offending telemarketer must
show that:
 It has written procedures to comply with the Do Not Call
requirements
 It trains its personnel in those procedures
 It monitors and enforces compliance with these procedures
 It maintains a company-specific list of telephone numbers that it
may not call
 It accesses the Registry no more than 31 days before calling any
consumer, and maintains records documenting this process
 Any call made in violation of the Do Not Call rules was the result
of an error
Telemarketing and the TCPA (cont.)
• National Do Not Call Registry (cont.)
▫ Examples of recent fines:
 FTC settlement with DirecTV included payment of a
$5.3 million fine for violating the Do Not Call rules
 The telemarketers calling for DirecTV called consumers whose
names were on the Do Not Call Registry
 One telemarketer failed to have a live sales representative
respond to consumers’ greeting within two seconds, thus
resulting in abandoned calls
 The complaint alleged DirecTV continued to employ the
telemarketer even after it knew of the violations
 FTC settlements with two of DirecTV’s telemarketers
included fines for $50,000 and $25,000
Telemarketing and the TCPA (cont.)
• National Do Not Call Registry (cont.)
▫ Preemption
 The Federal Do Not Call rules preempt any lessrestrictive state do not call regulations
 But states may adopt more restrictive intrastate
regulations essentially free from federal interference
 E.g. Utah has defined telephone solicitations more broadly:
▫ Includes financial donations in the definition
▫ Includes certain solicitations from charitable organizations
involving prizes, gifts, subscriptions, or other such incentives
in the definition
Telemarketing and the TCPA (cont.)
• Company-Specific Do Not Call Lists:
▫ A consumer may request not to receive any future
telephone solicitations from a telemarketer
▫ The organization making the call is then required to
place them on a list, which must be maintained for five
years
Marketing Via Facsimile and the Fax Act
Marketing Via Facsimile and the Fax Act
• The Junk Fax Prevention Act (“Fax Act”) is
actually part of the TCPA
Marketing Via Facsimile
and the Fax Act (cont.)
• The TCPA, as amended by the Fax Act, prohibits any person,
including a business, individual, or tax-exempt nonprofit organization,
from using a fax machine, computer, or other device to send an
unsolicited advertisement (known as “junk fax”) to another fax
machine
▫ This includes both business fax machines and residential fax machines
▫ Unlike with telephone solicitations, nonprofit organizations are not exempt
under the Fax Act
• An “unsolicited advertisement” is any material advertising the
commercial availability or quality of any property, goods, or services
that is transmitted to any person without that person’s prior express
invitation or permission
▫ Note the similarity to the definition of telephone solicitations
▫ This definition includes:
 Rate sheets on financial products transmitted to a potential borrower or potential
broker
 Advertisements that promote goods or services at no cost
Marketing Via Facsimile
and the Fax Act (cont.)
• A company is allowed to send commercial faxes without
prior permission if the sender and the recipient have an
EBR; or
• If the recipient’s fax number was provided by the
recipient, i.e. express permission; or
• If the recipient’s fax number was made publicly available,
as in a directory, advertisement, or website
▫ Unless the recipient has noted on such materials that it does not accept
unsolicited advertisements at the fax number in question
▫ If the number is from the recipient’s own directory, ad, or website, the
sender can assume it has voluntarily made the number available
▫ If it is from another public source, the sender must take reasonable steps to
verify that the recipient consented to having the number listed, such as by
calling or e-mailing the recipient
Marketing Via Facsimile
and the Fax Act (cont.)
• EBR under the Fax Act and the FCC rules is defined in
almost the same way as under the general provisions of the
TCPA, however, the Fax Act subjects the duration of an
EBR’s existence to any time limitations that the FCC
determines appropriate. Currently the FCC has placed no
time limit on the EBR, unlike the 3 month and 18 month
limits for telemarketing EBRs
▫ The sender has the responsibility of proving an EBR
• As with telephone solicitations, a recipient may terminate
an EBR at any time simply by requesting the sender
refrain from sending further faxes
Marketing Via Facsimile
and the Fax Act (cont.)
• An EBR or Express Permission is required:
▫ The FCC fined The Hot Lead, LLC $2,168,500 for
sending 356 different unsolicited advertisements to at
least 110 different consumers without having an existing
EBR or express permission
▫ The FCC fined Extreme Leads, Inc. $1,377,000 for
sending 218 different unsolicited advertisements to at
least 132 different consumers without having an existing
EBR or express permission
▫ Mexico Marketing, LLC was fined $1,133,000 in July of
2007 for sending unsolicited faxes and again in
December of 2007 for $335,000, both times because it
sent ads via fax to consumers without having an EBR or
express permission
Marketing Via Facsimile
and the Fax Act (cont.)
• Additional requirements of the Fax Act:
▫ Unsolicited commercial faxes must include a clear and
conspicuous “opt-out” provision on the first page and
provide a free twenty-four hour means for recipients to
request removal from the distribution list
 The FCC regulations require the “opt-out” provision to be
included on all fax advertisements, whether solicited or
unsolicited
▫ Fax numbers to which any unsolicited advertising is
delivered must be obtained either directly from the
recipient or from a public source to which the recipient
gave the number for publication
▫ Fax numbers already in the possession of the sender
prior to July 9, 2005, are “grandfathered” in and thus
may be used
Marketing Via Facsimile
and the Fax Act (cont.)
Additional requirements of the Fax Act (cont.):
▫ All faxes must identify the registered name and telephone
number of the entity on whose behalf the fax is being sent and
the date and time the fax was transmitted
▫ The Opt-out notice must be on the first page of the fax and
explicitly state that the recipient can request that the sender not
send any future faxes and that such request will be complied
with within thirty days
 The opt-out means must be cost-free to the recipient
 Available 24 hours a day any day of the week
▫ The sender must comply with an opt-out request in the shortest
reasonable time, at least within thirty days
Marketing Via Facsimile
and the Fax Act (cont.)
• Professional or Trade Organizations
▫ There is no exemption for nonprofits from the
Fax Act
▫ However, a message does not fall under the act if
it is not commercial in nature
 Messages involving political or religious
discourse are not prohibited under the Fax Act
or the TCPA
Marketing Via Facsimile
and the Fax Act (cont.)
• Preemption and State Law
▫ States clearly may regulate the transmission of fax
advertisements intrastate and impose stricter standards
 E.g. Arizona – have only three days to take a requester
off company list
 E.g. Minnesota – company must establish a 1-800
number for the consumer to call to request removal
from the company list, the number must be displayed
in 9 point font
▫ It is unclear whether state regulation of interstate
transmission will be preempted
Marketing Via Facsimile
and the Fax Act (cont.)
• Jurisdiction under the TCPA and the Fax Act
▫ The TCPA states that a private right of action is available in state
court “if otherwise permitted by the laws or rules of court of a
State”
▫ State courts are split in interpreting this:
 Majority view – creates a private right of action unless a state
affirmatively acts to eliminate it
 Minority view – no private right of action exists unless state
affirmatively acts to create it
▫ There is also a split on whether state courts have exclusive
jurisdiction or whether such cases may be brought or removed to
federal court
Marketing Via Facsimile
and the Fax Act (cont.)
• Penalties:
▫ As with telemarketing violations, the FCC has authority
to impose fines of up to $11,000 for each violation
▫ Again, as with telemarketing violations, an aggrieved
individual may file a complaint in state court
▫ And, class actions are permitted
 They have become common
 See www.junkfax.org and www.tcpalaw.com for examples
▫ Unlike the Do Not Call provisions, there is no safe
harbor in the Fax Act for errors
▫ The GOA has encouraged the FCC to improve its
enforcement efforts; this is likely to result in heightened
enforcement by the FCC
Marketing Via Facsimile
and the Fax Act (cont.)
• Penalties (cont.):
▫ Fax broadcasters (those who send on behalf of others) can be
liable if they have actual notice of the illegality or a “high
degree of involvement” in the sender’s fax message
 E.g. supplying the fax numbers, providing a source of fax numbers,
making representations about the legality of faxing those numbers,
or advising about how to comply with the junk fax rules.
 If the fax broadcaster is highly involved, it must provide its name on
the fax.
 The sender is always liable, whether it uses a fax broadcaster or not.
▫ The sender is responsible for complying with opt-out notice
requirements and honoring opt-out requests, even if the fax
broadcaster doesn’t forward those requests to the sender
 The sender should deal with this contractually
Marketing Via Facsimile
and the Fax Act (cont.)
• Examples:
▫ First Choice Healthcare: FCC issued a notice of apparent
liability to First Choice Healthcare, Inc. including a proposed
fine of $776,500 for transmitting unsolicited fax advertisements
 First Choice had sent at least 98 unsolicited ads to 37 different
consumers
 The faxes advertised health benefits at “$59.95 per month!
Unlimited PPO savings nationwide…Call now for this yearly
promotion!! This promotion ends Friday…”
 None of the recipients had EBRs with First Choice, nor did they give
express permission to First Choice to send ads
 In fact, 22 consumers actually contacted First Choice to request that
they stop sending the fax ads
 The notice of apparent liability was filed after First Choice sent
back the initial citation to the FCC marked “unclaimed”
Marketing Via Facsimile
and the Fax Act (cont.)
• Examples:
▫ Hooters of Augusta, Inc.: The class-action lawsuit, filed in
1995, finally went to the jury in March of 2001 after a long
battle in the courts with various appeals and maneuvering by
Hooters. As the jury determined that each of the 1,321 class
members received six unsolicited faxed advertisements,
Hooters was ordered to pay $9,000 each, for a total of
$11,889,000
▫ Dallas Cowboys: The Dallas Cowboys agreed to pay $1.73
million to settle a class-action lawsuit claiming the team
violated state and federal consumer protection laws by hiring
a telemarketing company to fax unsolicited advertising to
thousands of people
 Plaintiff's lawyer said American Blast Fax sent the fax at least once
to 125,000 locations. Those recipients were eligible for up to $500 for
each unsolicited fax
 If any funds remain, the Cowboys agreed to donate it to charity
Marketing Via Facsimile
and the Fax Act (cont.)
• Even the FCC is not immune from Junk Fax:
• The FCC sent this notice of citation to a Junk Fax Sender:
▫ “Dear Mr. Katz:
This is an official CITATION, issued pursuant to section 503(b)(5) of the
Communications Act of 1934, as amended (Communications Act), for
possible violations of the Telephone Consumer Protection Act of 19911
(TCPA) and the Federal Communications Commission's rules that
implement that Act.
It has come to our attention that your company recently transmitted to a
telephone facsimile machine at the Federal Communications Commission
an unsolicited advertisement for products, goods, or services offered by
Advanced Cellular Communications, Inc. (see attachment). Pursuant to the
TCPA and the Commission's Rules, it is unlawful to use a ``telephone
facsimile machine, computer, or other device to send an unsolicited
advertisement to a telephone facsimile machine.”
E-mail Advertising and CANCAN-SPAM
• The CAN-SPAM Act was enacted in December of 2003 and
became effective in January of 2004
• CAN-SPAM seeks to create a uniform, national standard
for the regulation of commercial electronic mail
• Commercial e-mail is defined as e-mail whose primary
purpose is to advertise or promote a commercial product
or service, including content on a website operated for
commercial purpose
▫ Commercial e-mail does not include transactional and relationship
messages
▫ It does include business to business e-mail
▫ It may include e-mail employee recruiting if the e-mail contains a
link to the business’ website or touts the financial success and plans
for growth of the company
E-mail Advertising and CANCAN-SPAM (cont.)
• There is no EBR exception under commercial e-mail
definition
• The transactional/relationship exemption is not the same
as an EBR
▫ It is defined narrowly and only includes e-mails that
facilitate, confirm, or complete a transaction that the
recipient previously entered into with the sender; or
▫ Provide information concerning an ongoing relationship
between the sender and the recipient
E-mail Advertising and CANCAN-SPAM (cont.)
• CAN-SPAM seeks to limit fraudulent or abusive activity
conducted over the Internet by:
▫ Establishing requirements for those who send
commercial e-mail;
▫ Enumerating penalties for violators, including both
spammers and companies whose products are advertised
by spammers; and
▫ Giving consumers the right to request e-mailers to stop
sending them spam
E-mail Advertising and CANCAN-SPAM (cont.)
• Mixed Messages:
▫ E-mail that includes both a commercial purpose
and transactional/relationship purpose or a
purpose that is neither commercial nor
transactional/relationship is commercial e-mail
if:
 A recipient would reasonably interpret the subject line
to be a message promoting a product or service;
 The message’s transaction or relationship content does
not appear at or near the beginning of the message; or
 A recipient would reasonably interpret the body of the
message as primarily being to advertise or promote a
product or service
E-mail Advertising and CANCAN-SPAM (cont.)
• Specific Rules:
▫ Senders of commercial e-mail may not provide headers
or subject lines (i.e. “From” and “To” routing
information) that are materially false or misleading;
▫ Senders must:
 Clearly and conspicuously describe e-mail as an advertisement or
commercial solicitation;
 Include a clear and conspicuous notice that the recipient can
“opt-out” of receiving further commercial e-mail from the
sender; and
 Provide the sender’s valid physical postal address and a
functioning return e-mail address (or another Internet-based
response mechanism) that remains operational for at least thirty
days after the transmission of the e-mail
E-mail Advertising and CANCAN-SPAM (cont.)
• Specific Rules (cont.):
▫ Senders and any person acting on the sender’s behalf must
honor opt-out requests within ten business days and may not
transmit or assist in the transmission of commercial e-mail to
that recipient absent the recipient’s subsequent, affirmative
consent
▫ Senders may not sell or transfer any e-mail addresses
belonging to individuals who have opted-out, unless such
transfer is to enable the entity to comply with CAN-SPAM
▫ Senders must mark e-mail containing sexually explicit
material with the exact phrase “SEXUALLY-EXPLICITCONTENT”
E-mail Advertising and CANCAN-SPAM (cont.)
• Specific Rules (cont.):
▫ Commercial e-mails that are sent with the affirmative
consent of the recipient still must contain the postal
address of the sender and an opt-out mechanism, but
they may eliminate the content identification statement
▫ In giving express consent to receive commercial e-mail,
recipients must have an active choice to accept
commercial e-mail solicitations, e.g. clicking an
acceptance box, i.e., the box cannot be pre-selected
E-mail Advertising and CANCAN-SPAM (cont.)
• Enforcement:
▫ The FTC and the FCC have promulgated regulations
based on CAN-SPAM
▫ The FTC has generally targeted senders of mass amounts
of spam who violate multiple parts of CAN-SPAM, but
recently it settled a case with Kodak Imaging Network,
Inc. for simply failing to provide the required disclosures
in its e-mails
▫ Penalties include fines of $250 per violation, up to a
maximum of $2 million, the fine may be tripled for
“willful or knowing” violations or “aggravated violations”
▫ Unlike with the TCPA and Fax Act, there is no private
right of action for individuals and class actions are
prohibited
E-mail Advertising and CANCAN-SPAM (cont.)
• Enforcement (cont.):
▫ There are additional penalties for commercial emailers who take further steps to circumvent the
law, “aggravated violations,” such as by:
 Using scripts or other automated means to register
multiple e-mail addresses to send commercial e-mail
(address harvesting and dictionary attacks);
 Relaying e-mails through a computer or network
without permission; and
 Using a computer without authorization to send
commercial e-mail
E-mail Advertising and CANCAN-SPAM (cont.)
• Enforcement (cont.):
▫ Example: In 2004, the FTC sued Phoenix Avatar
for marketing a bogus diet patch through large
amounts of spam
 The parties settled for $20,000, which suspended the
$230,000 judgment that likely would have resulted
▫ Combating spam has proven to be the most
difficult consumer protection problem the FTC
has faced
▫ Technology, according to the FTC, may be the
best protection available
E-mail Advertising and CANCAN-SPAM (cont.)
• CAN-SPAM authorizes the US Department of Justice to
pursue criminal sanctions, including imprisonment, for
senders of commercial e-mail who:
▫ Use another computer without authorization to send
Commercial e-mail
▫ Use a computer to relay commercial e-mail so as to deceive
or mislead recipients or ISPs about their true origin
▫ Falsify header information and transmit such e-mail, or
register for multiple e-mail accounts or domain names
using information to falsify the identity of the true
registrant; and
▫ Falsely represent themselves as owners of multiple ISP
addresses, which are used to transmit commercial e-mail
messages
E-mail Advertising and CANCAN-SPAM (cont.)
• ISPs are also permitted to sue violators in federal
district court to enjoin further violations and/or
recover actual or statutory damages
• Statutory damages are set at:
▫ $100 per violation for transmitting materially false or
misleading header information
▫ $25 per violation for any other violation
▫ Up to a maximum of $1 million
E-mail Advertising and CANCAN-SPAM (cont.)
• Preemption
▫ CAN-SPAM preempts state law, but states
are allowed to enforce parts of CANSPAM
▫ State laws regarding fraudulent and
deceptive acts and computer crimes
remain in effect
Best Practices
Best Practices
• TCPA:
▫ Synchronizing calling lists with the Do Not Call Registry
every 30 days
▫ Develop company procedures and train employees to
comply with the TCPA to ensure no calls are made to
numbers on the Do Not Call list
▫ Maintain a Company Do-Not-Call list for those
consumers who make specific requests
▫ Disclose all material information in the call, included the
caller’s name, company name, goods or services being
offered, and any information that would affect the
consumers decision to purchase
▫ Maintain records for at least 24 months
▫ Call only between 8 a.m. and 9 p.m.
Best Practices (cont.)
• Fax Act:
▫ Develop a list of fax numbers belonging to consumers
with whom or from whom:
 You have an EBR; or
 You received express permission to send fax ads
▫ Ensure any fax ads sent contain:
 Company’s registered name and telephone number
 Date and time of fax
 Opt-out notice on the first page with a toll-free number or e-mail
address to reply to, both must be available 24 hours a day, seven
days a week
▫ When an opt-out request is received, immediately add
the number to a Company Do Not Fax list
Best Practices (cont.)
• CAN-SPAM:
▫ Clearly identify the sender of the e-mail
▫ Disclose the sender’s actual point-of-origin e-mail
address
▫ Do not use false or misleading routing information
▫ Do not conceal routing information
▫ Do not use false or misleading information in the subject
line of the e-mail message
▫ Provide a mechanism for opting-out, including a return
e-mail address, toll-free number, and physical address
Best Practices (cont.)
• CAN-SPAM (cont.):
▫ Immediately remove an individual from e-mailing lists
when an opt-out request is received
▫ Maintain records of recipients who opt-out
▫ Do not harvest e-mail addresses from an Internet
website without first reading the website’s terms of use
▫ Train personnel and maintain records of the training
▫ Maintain records of compliance with the law